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CS EXECUTIVE SOLVED PAPER GCL (ii) Section 26 of the Arbitration and Conciliation Act, 1996 says that the tribunal can take the help of an expert for opinions on any matter in the proceedings. The expert can contribute by being a part of the proceedings and forwarding his reports, if any, to the tribunal. His reports also have to be forwarded to both the parties to arbitration. Theexperts can be appointed subject to agreement between the parties. Clause (b) ofSub-section (1) of the Section obligates the parties to provide the expert access tonecessary information and documents. Conversely, there is a duty placed on the expertunder Section 26(3) to make available to the parties on their request the various documents etc. on which the expert has based his report. This will enable the parties to present counter questions or objections. Strict liability or absolute liability – This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases – -Unavoidable accidents –When a person is doing some work, which, if it goes wrong, is liable to cause harm to another, it will bring liability upon him even if the harmful substances were being kept and maintained by another on his land. For instance, if someone has a godown, which he leases to another, and if that otheR causes some illegal activity to take place in that place, the owner is also liable fo it-Unavoidable mistake – When a person affects another’s tangible or intangible property, for example, someone who gives wrong information about another to the press has to undertake full liability for it. The rule of strict liability in Rylands v. Flethcer(1868) L.R. 3 H.L. 330 is that a man acts at his peril and is the insurer of the safety of his neighbour against accidental harm. Such duty is absolute because it is independent of negligence on the part of the defendant or his servants. In this case, B, a mill owner employed independent contractors, who were apparently competent to construct a reservoir on his land to provide water for his mill. There were old disused mining shafts under the site of the reservoir which the contractors failed to observe because they were filled with earth. The contractors therefore, did not block them. When the reservoir was filled, the water from it burst through the old shafts and flooded the plaintiff's coal mines on the adjoining land. It was found as a fact that B did not know of the shafts and had not been negligent, though the independent contractors were definitely negligent, and B was held liable. The Indian Evidence Act of 1872 recognizes some rules as to presumptions. Presumptions are used in the interpretation of statutes only when the intention of the legislature is not clear; when it is clear, they are to be avoided. Conjecture or suppositions are used when it becomes difficult to comprehend the statute in its own light. The basic presumptions used in the interpretation of statutes are as follows – (i) The words used in the statute have been used in the literal sense with precise meanings unless Keep visiting www.cshindinotes.com Page 4
CS EXECUTIVE SOLVED PAPER GCL otherwise defined. (ii) There has been effected no change I the rights of the people unless the statute prescribe such a change expressly. (iii) Liability only attaches where there is mens rea (guilty mind). (iv) The state or governmental institutions, unless expressly covered, are deemed to be exempte (v) The legislature, while passing the new statute was aware of the manner of functioning of the judiciary and the executive as well as the legal condition in the country and unless stated, has not caused any changes in it. (vi) No mistakes have been committed by the legislature in drafting the statute. (vii) No pointless activity would be enjoined on the people. (viii) The statute has been made with a view to exercise the powers given through it equitably and fairly. (ix) Where the statute creates a legal duty that is accompanied by a legal power, an cannot stand without it, it is assume both go together. 2010 - Dec [4] (a) Explain with illustration the doctrine of ‘damnum sine injuria’ and ‘injuria sine damnum’.(6 marks) Answer : (a) Injuria sine damnum – ‘Injuria’ means ‘infringement’ of some legal right. ‘Damnum’ means ‘actual damage or loss’, caused either to the person or to the property of the aggrieved. Injuria sine damnum gives the aggrieved the right to proceed in a court of law, as his legal rights have been harmed. For example, trespass gives the owner the right to sue the trespasser. Damnum sine injuria – This implies that although there have been loss caused to the aggrieved, he cannot sue as there has been no infringement of any legal rights. For example, if a trespasser entered a property and was injured by the owner’s dog, there is no legal remedy if the owner has a board outside saying, “Do not trespass. Beware of dog.” 2010 - Dec [7] (b) Anil prefers an appeal for setting aside the arbitral award on the ground that he was not given a proper notice of arbitral proceedings and thereby not being able to present his case. He also furnishes sufficient proof and pleads before the court the he received the arbitral award just 15 days back. Decide with reasons — (i) whether Anil with succeed in his prayer; and (ii) whether the law of limitation will not be a bar (5 marks) Answer : An arbitral award can be set-aside on application to the High Court having jurisdiction, and any civil court of an inferior grade. This has been provided under Section 34 of the Arbitration and Conciliation Act, 1996. The grounds based on which an application under this section can be filed are as follow – • Invalid or unacceptable arbitration agreement • Incapacity of parties • Improper notice of arbitration proceedings • Inability in presenting a proper case to the arbitral authority Keep visiting www.cshindinotes.com Page 5
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